Madras High Court
V.Nandhini vs M/S.Nila Sea Foods Pvt. Ltd on 14 December, 2021
CMA(MD)No.807 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CMA(MD)No.807 of 2019
1.V.Nandhini
2.A.Vimalraj ... Appellants/Petitioners
Vs.
1.M/s.Nila Sea Foods Pvt. Ltd.,
No.137, Pudur Pandiapuram,
Thoothukudi District – 5.
2.The Branch Manager,
National Insurance Co.Ltd.,
Branch Office – 1,
No.175A, Great Cotton Road,
Thoothukudi District – 1. ... Respondents/Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to allow the Civil Miscellaneous Appeal and
set-aside the fair and decreetal order in M.A.C.O.P.No.360 of 2017, dated
06.06.2019 on the file of the Principal District Judge/Motor Vehicle
Accidents Claims Tribunal, Thoothukudi.
For Appellants :Mr.I.Pinaygash
For R1 : No Appearance
For R2 : Mr.D.Rajkumar
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CMA(MD)No.807 of 2019
JUDGMENT
The appellants filed this appeal to set-aside the fair and decreetal
order in M.A.C.O.P.No.360 of 2017, dated 06.06.2019 on the file of the
learned Principal District Judge/Motor Vehicle Accidents Claims
Tribunal, Thoothukudi.
2. On 31.07.2016 at about 8.30 hours, when the deceased was
playing in front of the petitioner's house Thai Nagar, Tsunami Colony,
Thoothukudi, at that time, the first respondent's bus, bearing Registration
No.TN-39-R-3976, driven by its driver in a rash and negligent manner
dashed against the deceased. As a result of which, the deceased
sustained multiple injuries and his head was crushed. Immediately, the
deceased was taken to the Government Hospital, Thoothukudi, but the
Doctor declared that the deceased brought dead.
3.The claimants have filed the claim petition in M.C.O.P.No.360 of
2017 on the file of the Motor Vehicles Accidents Claims Tribunal Cum
Principal District Judge, Thoothukudi, claiming compensation of
Rs.20,00,000/-.
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CMA(MD)No.807 of 2019
4.Before the Tribunal, on the side of the claimants one witness was
examined as P.W.1 and nine documents were marked as Exs.P.1 to P.9.
On the side of the respondents herein, two witnesses were examined as
R.W.1 and R.W.2 and three documents were marked as Ex.R1 to Ex.R3.
5.The Tribunal, after considering the pleadings, oral and
documentary evidences and the arguments of the counsel for the claimant
and the respondents and also on appreciating the evidences on record,
held that the accident occurred only due to the rash and negligent driving
of the driver of the first respondent bus and directed the second
respondent to pay a sum of Rs.2,58,000/- as compensation and the
second respondent to recover the same from the first respondent.
Aggrieved over the orders passed by the Tribunal, the claimants have
filed the present appeal under Section 173 of the Motor Vehicles Act,
1988.
6.Heard Mr.I.Pinayagash, learned counsel appearing for the
appellants/claimants and Mr.D.Rajkumar, learned counsel appearing for
the second respondent/insurance company. No representation for the first
respondent.
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CMA(MD)No.807 of 2019
7. The learned counsel appearing for the appellants submitted that
the monthly income of the deceased fixed by the Tribunal at Rs.1,250/- is
very low and erred in applying the multiplier as '15' instead of '18' and no
amount was awarded towards loss of love and affection. Hence, he seeks
enhancement of compensation awarded by the Tribunal.
8.The learned counsel appearing for the second
respondent/insurance company submitted that the child was playing on
the middle of the road, so 50% liability to be fixed on the claimants. He
further contended that the Tribunal after analysing the evidences and
documents awarded a just compensation and the same need not be
enhanced.
9.The second respondent/insurance company has not filed any
appeal against the award passed by the Tribunal.
10. According to the appellants, the Tribunal has fixed Rs.15,000/-
per year as notional income of the deceased. The learned counsel
appearing for the appellants, in support of his contentions, relied upon
the Judgment of this Court in National Insurance Co. Ltd., Vs.
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CMA(MD)No.807 of 2019
K.Sugumar and Others reported in (2017 (2) TNMAC 805) and the
Judgment of this Court made in S.A.No.718 of 2019 in (G.Nishanthi &
another one Vs. Deborah (deceased) and 2 others).
11. Since the child is 3 years old, as per above judgment, this
Court fixed Rs.60,000/- p.a., as notional income of the deceased and if
multiplier '15' is to be adopted, loss of earning would be Rs.9,00,000/-
(Rs.60,000/- x15) and the same is awarded. The Tribunal has not
awarded any amount for loss of consortium. Hence, this Court awarded
Rs.40,000/- each claimants towards loss of consortium and Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral expenses.
12. The second respondent/Insurance Company contended that the
child was playing on the middle of the road, so 50% of liability fixed on
the claimants. But FIR was registered as against the driver of the bus and
as per the evidence, the child was playing in front of the house of the
claimants, so only the second respondent/Insurance Company is liable to
pay compensation. The award passed by this Court under various heads
is extracted hereunder:
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CMA(MD)No.807 of 2019
S.No. Head Amount granted
by this court
1. Loss of Earning Rs. 9,00,000/-
2. Loss of Estate Rs. 15,000/-
3. Loss of Consortium (both Rs. 80,000/-
claimants)
4. Funeral Expenses Rs. 15,000/-
Total Rs.10,10,000/-
13. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.2,58,000/- to Rs.10,10,000/- with interest at the rate of 7.5% per
annum.
(iii) The appellants / claimants are directed to pay the court fee for
the enhanced compensation amount, if any.
(iv) The second respondent Insurance Company is directed to
deposit the enhanced compensation amount i.e., Rs.10,10,000/- less the
amount already deposited, if any, together with interest at the rate of
7.5% per annum from the date of claim petition till the date of deposit to
the credit of MACOP.No.360 of 2017 on the file of the Principal District
Judge/Motor Vehicle Accidents Claims Tribunal, Thoothukudi within a
period of six weeks from the date of receipt of a copy of this order.
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CMA(MD)No.807 of 2019
(v) On such deposit being made, the appellants are entitled to
withdraw the same the same by filing necessary application before the
Tribunal.
14.12.2021
Index : Yes/No
Internet : Yes/No
vsd
Note : In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Principal District Judge/
Motor Vehicle Accidents Claims Tribunal,
Thoothukudi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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CMA(MD)No.807 of 2019
S.ANANTHI, J.
vsd
CMA(MD)No.807 of 2019
14.12.2021
https://www.mhc.tn.gov.in/judis
